Taylor’s civil suit dismissed

BUCKHANNON – A lawsuit brought against the Upshur County Commission by a former candidate for sheriff has been dismissed in federal court.

David Taylor, who ran for Upshur County sheriff in the 2012 primary election, filed the six-count federal civil suit, listing Commission President Donnie R. Tenney, former commissioner Creed Pletcher, Commissioner J.C. Raffety, the Upshur County Commission – as a political subdivision – and their attorney at the time, Timothy P. Stranko, as co-defendants.

Taylor, who finished second in the Republican primary election to Mike Kelley, filed the lawsuit in December 2013 in the Elkins office of the U.S. District Court for the Northern District of West Virginia. In the suit, Taylor claimed the Commission conspired to violate his constitutional rights in connection with the election.

In a motion to dismiss Taylor’s complaint entered in January, the Commission’s attorneys argue Taylor’s complaint failed “to state a claim upon which relief can be granted,” and therefore should be dismissed.

The Upshur Commission’s motion to dismiss was granted April 11.

On Thursday, the Upshur County Commission released the following statement regarding the dismissal: “The Upshur County Commission was informed that Chief U.S. District Judge John Preston Bailey has dismissed the civil case Taylor versus Tenney, Pletcher, Raffety and the Upshur County Commission. We are pleased with the outcome of the case.”

Taylor also released a statement to the media Thursday: “Obviously I am disappointed, but not devastated,” Taylor said. “Respectfully, I disagree with the honorable court’s decision, but I will abide it and move on.”

The dismissal order in the case cites insufficient factual matter, stating, through its citing of the 2007 case Bell Alt. Corp. V. Twombly, that sufficient factual matter is needed to establish the facts alleged in the complaint, allowing the court to draw a reasonable inference that the defendants are liable for the alleged misconduct.

The order states that Taylor’s complaint must offer more than “a sheer possibility that a defendant has acted unlawfully,” rather than requiring “detailed factual allegations.”

Taylor told The Inter-Mountain he respects the court’s decision.

“I have no desire to engage in protracted litigation,” Taylor said. “I just let it go. It was a valuable lesson learned. I respect the court’s decision.”

In the case, Taylor claimed his rights to procedural due process, equal protection and the right to vote in free and fair elections were violated. He claimed Kelley was ineligible to run for sheriff because his position as the chief deputy sheriff of Upshur County at the time allegedly violated the federal Hatch Act, which prevents state and local officers and employees paid using federal funds from running for an elected office.

Taylor also claimed Kelley was not eligible to run for sheriff under a West Virginia code which prohibits a deputy sheriff from holding public office in his county of employment. Taylor said he informed Pletcher in March 2012 about his beliefs regarding Kelley’s candidacy.

The Commission allowed Kelley to remain on the ballot which resulted in his certification as the winner of the primary race. However, Kelley withdrew from the race on June 21, 2012, after receiving a letter from the Office of Special Counsel advising him that his candidacy violated the Hatch Act.

Taylor filed a petition contesting the primary election on May 18, 2012. Stranko prepared an order related to that matter on July 17, 2012, one day prior to the hearing, which he sent to a legal assistant in the office of the West Virginia Secretary of State, according to the dismissal order. Stranko’s order stated Kelley’s withdrawal “rendered the controversy moot,” and that the Commission had no power to appoint a successor candidate to run for office, the dismissal states.

The Commission issued a final order in the matter on July 26, 2012, which dismissed Taylor’s challenge, finding that it had no jurisdiction to consider matters of the Hatch Act, that Kelley was an eligible candidate under state law and that his withdrawal from the election made any further action of the Commission unnecessary.